Thursday, 12 February 2015

Sodomy2: Above all, this is a story about all men, regardless of their power, being equal before the law.

'Yet Anwar Ibrahim himself chose to give no more than a statement from the dock. Unlike his victim, he refused cross-examination. This was his right under the law, but a right he used to attack the prosecution, the judges, and his former colleagues in government. He has undermined the reputation of his own country'

'Consider how this matter first arose. As Hansard (dated 22 October 1997, 18 December 1997) recalls, the very first time an MP stood up in parliament holding a statutory declaration that accused Anwar Ibrahim of sexual – homosexual – assault, Anwar Ibrahim was Deputy Prime Minister and his accuser was not a member of the government, but in fact an opposition MP from the DAP. And who was his original accuser? The late Karpal Singh MP, a brilliant lawyer. Any account of the criminal and then political downfall of Anwar Ibrahim should recall who threw the first stone'

'The only politically motivated actions here are those of Anwar Ibrahim and his supporters who have been demanding that the case be dropped'

PUTRAJAYA, Feb 10 (Bernama) -- Following are some of the highlights of the Federal Court's judgment in upholding the conviction and five-year jail sentence imposed on Datuk Seri Anwar Ibrahim by the Court of Appeal on the charge of sodomising his former aide Mohd Saiful Bukhari Azlan.

* The Federal Court panel of judges agreed with the Court of Appeal that Anwar had not created any reasonable doubt on the prosecution's case and that the prosecution has established its case beyond reasonble doubt.

* The scientific evidence (medical and DNA) adduced by the prosecution clearly established that sperm cells belonging to Anwar were found in the lower and upper rectum of Mohd Saiful.

* The Federal Court said the only logical explanation from the above is Mohd Saiful must have been sodomised by Anwar.

* Federal Court held that the defence of political conspiracy remained a mere allegation unsubstantiated by any credible evidence.

* Federal Court found Mohd Saiful to be a credible witness

* The panel found Mohd Saiful not a willing participant in the offence but in fact a victim

* The Federal Court judges were of the view that the trial (high court) judge erred in imposing the "100 per cent certainty" standard of proof on the part of the prosecution to refute the possibility of the DNA samples taken from Mohd Saiful being compromised.

* The correct standard of proof to constitute proof beyond reasonable doubt need not reach certainty but carry a high degree of probability, said the panel.

* Federal Court fould the possibility of the integrity of the samples taken from Mohd Saiful having been compromised as remote.

This judgment brings to an end seven years of court time during which nine judges, and scores of lawyers, Anwar alone had (14 lawyers in the Federal Court, but in all about 20 lawyers cumulatively at all levels) occupying many thousands of hours, have exhaustively looked at every detail of the evidence in this case from beginning to end. The total 9 judges do not include the judges who presided in interlocutory appeals.

I know that justice has finally been done, so I am professionally satisfied with the result today. But it gives me no pleasure – a young man's life has been wrecked, changed forever. Worse still, without anonymity, the victim was put through seven days of courtroom cross-examination and all that Datuk Seri Anwar Ibrahim’s team could throw at him. So even the process of justice added to his suffering.

Yet Anwar Ibrahim himself chose to give no more than a statement from the dock. Unlike his victim, he refused cross-examination. This was his right under the law, but a right he used to attack the prosecution, the judges, and his former colleagues in government. He has undermined the reputation of his own country.

I was appointed at the Court of Appeal until the final stages of this appeal at the Federal Court, the highest court in the land. It has been a very difficult task, because what would in ordinary circumstances be a straightforward case of sexual assault by an employer against an employee has been used as a battering ram against the reputation of the judiciary. So I ask all fair-minded people in Malaysia and overseas to consider carefully before forming an opinion, and to review the actual evidence in the case.

Most importantly, please read today’s judgment and the previous judgments word for word. They provide the facts – however ugly – of the case.

For example, turning to the DNA evidence, Malaysia has two key features in its treatment of DNA. Firstly, we require 16 out of 16 matching points. No country demands higher – most, such as UK and the USA, allow much less. All the DNA that supported this case matched 16 out of 16 – in gambler’s jargon, a ‘full flush’. And all the DNA was from semen, which is much more reliable then say DNA from sweat. You cannot steal, fake or contaminate it.

Second, in Malaysia there is no law that compels someone to give a DNA sample. When Anwar Ibrahim challenged the prosecution samples in court, he had the opportunity to offer his own samples, as fresh evidence. If innocent, he could have done so and closed the case overnight. He chose not to do so.

Regarding Anwar Ibrahim’s alibi, he initially offered an extensive one. But he abandoned it completely when it was demonstrated to be false by CCTV footage shown to the court. All this was established long ago.

Anwar Ibrahim also refused to swear on the Quran about the incident. The victim swore on the Quran about the details of the case, both in Malaysia and Mecca at Islam’s holiest mosque.

The case in front of this, the highest court in Malaysia, was a technical one: in all of the exhaustive legal process, and in all the layers of evidence, was there any possibility that due process had not been followed? Was there any technicality? Today, the answer of the judges was no. Today, they ruled on the decisions already taken, the evidence long ago tested and presented.

The great smear is the much-repeated allegation by Anwar Ibrahim that this case was politically motivated. As the judgment today details, this is simply false.

The independence of Malaysia’s judiciary is enshrined in the constitution. And this case was brought by a private individual, Anwar Ibrahim’s employee, who lodged a police complaint in which he accused Anwar Ibrahim of using undue pressure, as his employer, to coerce him into sex.

Nobody could have scripted the twists and turns of the extraordinary and comprehensive legal processes, including the many decisions that have gone in Anwar Ibrahim’s favour. To allege as much is offensive to the judges, and it is unsustainable to anyone who reads today what they decided, and why.

The only politically motivated actions here are those of Anwar Ibrahim and his supporters who have been demanding that the case be dropped.

Consider how this matter first arose. As Hansard (dated 22 October 1997, 18 December 1997) recalls, the very first time an MP stood up in parliament holding a statutory declaration that accused Anwar Ibrahim of sexual – homosexual – assault, Anwar Ibrahim was Deputy Prime Minister and his accuser was not a member of the government, but in fact an opposition MP from the DAP. And who was his original accuser? The late Karpal Singh MP, a brilliant lawyer. Any account of the criminal and then political downfall of Anwar Ibrahim should recall who threw the first stone.

But for the victim and indeed Malaysia, this has been a dreadful and long drawn out saga. At this time of closure, I ask the honourable members of the media present to impartially look at the facts of the case, to analyse the meticulous judgments, and to carry these, as best they may, to the people.

I am afraid some media appear to regard the Malaysian courts as acting fairly whenever they find in Anwar Ibrahim’s favour, and as compromised whenever they do not.

We all have a duty to the victim, a young man who was Anwar Ibrahim’s personal assistant, and who through no fault of his own has found himself in the national and international spotlight. As with all victims of serious crimes, he had the right to see his complaint properly investigated by the police and the judiciary.

So, rather than being a story about politics, this is actually a human story – and from the judiciary’s perspective, it is the role of our country’s justice system to enable both sides of the story to be heard in court.

Above all, this is a story about all men, regardless of their power, being equal before the law.